Intellectual Property – The Risk Factor

Are you comfortable that the intellectual property created by your business is safe? Those ideas, the products, the designs and the trading names that you may have used for years and years? Well perhaps you should think again!

What follows is a cautionary (and current) tale for us all. A very good friend of mine, Mark Le Gallez, formed a band in 1984, called The Risk, with Colin Leach. Based in Guernsey, using The Risk as their trading name, they began composing songs, recording them, and playing ‘live’ concerts. The interest that they generated with the self-released first 7” single in 1984, “Forget The Girl”, on their own FAB Records imprint, led to them being signed to London based record label, Unicorn.

What followed was a series of album and single releases on Unicorn Records, distributed across Europe by Nine Mile (part of The Cartel organisation) and a publishing deal with Sparta Florida (who also handled David Bowie’s publishing in times gone by). The process of manufacturing these hard format releases has involved industry bodies such as the Mechanical Copyright Protection Society (MCPS), the royalties from radio and TV plays and ‘live’ performances have resulted in collections and distributions by the Performing Rights Society (PRS) and the PPL, and the releases have been reviewed in the industry’s own journal, Music Week. In addition, The Risk has toured the UK, Europe and USA several times over the last 27 years within many well established music industry venues.

Nine albums later (plus several appearances on compilation albums on various other record labels such as Razor, Biff Bang Pow, Twist etc. and a tribute album of their songs recorded by other artists) the back catalogue was digitally re-mastered and released on CD by Detour Records imprint, ‘Paisley Archive’. These albums can be purchased from the normal industry outlets including Amazon, HMV etc. or via iTunes on mp3. And a new single, entitled “Good Times”, is scheduled for release as an mp3 single on 31st October.

So far, so good – an established business fully embedded within its own industry sector and generating significant goodwill over the years (along with indirect revenue streams for other industry companies).

Then enter the pop production line that is the X-Factor. During the last few weeks, the TV production company saw fit to ‘put together’ a new band from the remnants of failed solo auditionees and a below averagely talented boy band (their own judgement, not mine) and gave them the moniker of, yes – you’ve guessed it, The Risk.

Despite the cries of ‘foul’ from Mark and Colin (and ‘imposters’ from fans of the original band) the production company are refusing to change the name of their newly created act with an X-Factor spokesperson saying that “The ‘original’ Risk aren’t mainstream enough to claim the rights on the name”.

Surely they’re 27 years too late with that argument (where was the X-Factor then?). And anyway, the traditional rule in the music industry has always been that the first artist to release a commercial recording under a particular moniker had the right to keep that name.

If the X-Factor are allowed to push this through, and force the original band called The Risk to stop using their name (although I’m not sure how they intend to wipe out all of the historical releases) then this has huge implications for intellectual property rights protection and for the arts world specifically, but business in general – by their very nature, few creative artists are mainstream but focus on their own muse (what a dull place the world would be without the diversity of a variety of tastes, styles, niches and fashion trends).

I’m not sure why a TV production company believes it has the sole right to be judge and jury in the intellectual property rights debate within the arts (or anywhere else for that matter), or why it thinks it can dismiss any art not within its own narrow definition of mainstream as irrelevant (which is a great insult to so many of us). For now, incredibly, the music industry bodies are keeping their silence.

Do you still think your intellectual property rights are safe? For some, even 27 years of commercial use, when faced with the steamroller of a large corporate with huge financial backing, can create a nightmare.

And that’s The Risk for us all……